August 03, 2003

SDB's gay marriage errors

On most issues I agree with Steven Den Beste but I have to part company with him on gay marriage both on substantive issues and on his coverage of the procedural mechanics.

First the procedural quibbles. You can't really talk about the mechanics of amendment versus legislation versus judicial decision without laying the legal foundation of what's going on now. SDB completely misses out on the passage of the Defense of Marriage Act (DoMA) in 1996. He never fully lays out the constitutional issues which chiefly are contained in Article IV Section I of the US Constitution. He also never examines the possibility of congressional supremacy being invoked via Article III Section II Paragraph 2 except to quickly state that legislation should be subject to judicial review. In cases where the judiciary is suffering an overwhelming temptation to act as a legislature such as this, judicial review certainly should not be a sacred cow.

In detail, Article IV Section I lays out the general principle that various state acts shall be honored by other states and that Congress can regulate how this happens in general terms. If, as expected, either or both New Jersey and Massachusetts courts declare that marriage cannot be limited to a heterosexual union of two people then homosexuals will immediately rush to get married in a 'gay marriage state' and go back home and attempt to exercise marital privilege in their state of residence. This will land their case immediately in Federal Court as the marriage license issuing state will claim that the other state must recognize their license as per Article IV Section I and the non-recognizing state plus the Bush Administration will argue that DoMA is a legitimate regulation under the same article and that the marriage does not need to be recognized.

It's a pretty sad statement that a significant chunk of the religious right has lost so much faith in the courts that they believe that there's no use in waiting for the courts to rule and we should go straight to amendment. A significant chunk of the social conservatives are somewhat alienated and that bears watching at least as much as those alienated protesters going on about supporting the troops when they shoot their officers.

But moving on to the substantive issues of gay marriage, more problems arise. We're delving so deep into our collective cultural unconsciousness that a lot of this stuff is very unexamined. Like the 3rd amendment, there just hasn't been a lot of recent thought put into this stuff from the pro-heterosexual marriage, couples only side because it's been bedrock doctrine for a long, long time and nobody was dumb enough to attack it.

The first problem on substantive grounds with SDB's article is his sloppy use of language. Marriage is both a state and a private institution. If some church wants to create a private marriage, nobody is talking about stopping them and there is the proper sphere for solemnizing emotional bonds and all the other happy stuff that marriage is. The problem that is being addressed is state marriage which is something else entirely.

State marriage consists of a license, often some health tests, a specific set of legal rights and privileges that carry legal and tax consequences. All these things cost money and they have to be justified by proper secular purposes otherwise the expenditures are illegitimate.

Now one thing state marriage is not is a way to demonstrate love. That's just not the business of the government and expending tax dollars, even to issue the license, much less give marriage participants monetary benefits is simply not anywhere in the US Constitution.

SDB seems to think it is as he goes on at length about the need for marriage to support homosexual partners emotional bonds to each other without ever explaining why, other than making people happy, there is a reason to do it. This is sloppy thinking at best and really a cheap appeal to sentimentality.

To get married as a private understanding, in accord with the 9th and 10th amendments, is a private act. The federal government has no place in that. But such acts not only have no place being prohibited, they also have no place being supported by government provided monetary benefit or legal status benefit greater than any normal power of attorney documents might provide without upsetting bedrock arrangements that have been around for many, many years, predating the creation of this country.

Thus we have some base ground that hasn't been examined yet, what are the secular benefits of marriage that justify taxing the unmarried at higher than otherwise rates and adjusting various people's rights for the protection of this public institution called marriage?

SDB only touches on one, provision for the care of children. But is it necessary to make an exception to the general standards of trials, for instance, in order for children to be protected? Spouses are generally legally privileged with regard to testifying about crimes committed by their partner.

Clearly, to properly get anywhere on this topic, you have to list all the secular tasks and responsibilities that conventional heterosexual marriage has in current society, see if homosexual marriage would meet them, and then justify the public expenditure.

But homosexual marriage advocates aren't doing this and that includes SDB. Instead, he talks about "If Joe and John have such a relationship, this doesn't significantly impact the life of Harriet down the street except to the extent that the knowledge of it gnaws at her because she thinks it's icky (or a mortal sin)."

This is a fantasy world. Harriet's taxes would be higher in a gay marriage world, and if Joe knows about a crime that John committed Joe can no longer be forced to testify against John. This imposes a real social cost on Harriet and Harriet is right to be miffed when John and Joe haven't even bothered to make the case why they should be given these and other special privileges of marriage. There is a wonderful case for romantic love but that has nothing to do with the license office and the blood test.

Marriage is not just a social club that happens to carry formal legal sanction. It civilizes and calms male aggression (which is why polygamy is illegal) and provides a stabilizing force on society in general even apart from its very necessary role in the raising of children. Men and women are complementary and for the state to encourage pairings between them creates a situation where the whole is greater than the sum of its parts (one way to look at marriage is as a specialized form of corporation). This increase in societal efficiency is a legitimate public aim and is a part of the reason why marriages are supported by expenditures from the public purse.

How do homosexual unions fare regarding a reduction in aggression? Lesbian couples will certainly increase the number of young, single men. Gay male unions don't have any data out about their effects in this area as far as I know. Frankly, I'm not too hopeful on their domesticity effects but I'm enough of a non-expert that I'd be willing to be persuaded.

How are homosexual unions with regard to partner complementariness? Again, no data available. This is the sort of thing that is much more suitable for a legislature to worry over. But gay marriage, when it comes to the US, is likely to come by a judicial back door, much as it has in Canada. It shouldn't.

The judgment needed on marriage rightfully belongs to the legislature because at heart, public marriage is not a civil rights measure but an economic arrangement that provides social goods in exchange for public expenditures to support the institution. Expanding the marriage privilege to new classes is likely to make very bad law and a nationwide uproar if it is not approached with this clearly in mind.

Finally, there are all sorts of religious reasons why tinkering with marriage is a bad idea. Most of them are right too but it is perfectly possible to make a consistent case for heterosexual couple marriage exclusivity without having to resort to any of them.

Posted by TMLutas at August 3, 2003 06:00 AM